Question posted in the General Law category relating to KwaZulu-Natal
Question value: R 300.00
I employed a guy to build wooden wendy houses on my property he asked for 50 percent deposit for materials and labour 55k i gave it to him on the first day - first day they dug holes for fence 1pm the two went off to so call "order supplies' which they said would get her next day. next day 8am after i have paid them no show i try contant by cell phone no reply to whattsup or answering phone i panic as now he has my money in his bank i phone absa fraud - 9.30am he turns up no explaniation for late no apologies digs holes again no supplies today four boys - at 2pm i go outside two boys have dissapeared i get told boss has now gone to look for supplies in pmb as the stuff he has seen not good quality yet he said he as going to order supplies day before ... he dug holes for fence in all the wrong places yet i showed him where i wanted the fence. I also asked him didnt i need planning permission from municipality he said no but he would check with his inspector - his inspector said it was okay and i said okay get him to write a letter to the effect that its okay to build without planning he said he would when the work was finished first problem. Then he said ooops he forgot to include the geysers and they will cost 9800 each i said no way as they go for R4200 each he said okay he would include in price - now i have given up and decide to cancel - but a month later he still hasnt given me my money back and its been reported to police to absa fraud my bank to his bank fnb - i have now gone to a lawyer who sent letters of demand yesterday and now wants to issue summons im frightened as i am a pensioner i borrowed the money from the bank to build these as a way to make extra income but i dont have a pension and i only work only selling second hand stuff i am very scared at this point as to why banks have not refunded and not sure as i have now paid this lawyer already r6000 now she wants another r6000 to summons
yes he is an immigrant here on a visa i know now as he will have a criminal case against him and if he gets summons he wont be allowed to get a new work permit as he is registerd with the building association
Answer to the Question
Hi there and thank you for your question,
I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.
I think that you need to speak to a registered builder before moving forwards!
Have a look at this brochure which is put out by the eThekwini Municipality regarding building plan requirements - which you appear NOT to have followed... Very similar requirements apply to all municipalities in South Africa, although they might differ very slightly - the crux is the same.
I think that step 1 is that you need to get building plans drawn up, and submitted to the municipality.
Step 2 is that you then need to get your Wendy House building to comply with the plans, and come and build your Wendy Houses. If he refuses, then you will need to cancel your building agreement and claim your money back.
I don't think that there is any "fraud" which he has committed which will make the banks get involved. And to be honest, I don't think that the SAPS will get involved, simply because this isn't a criminal case - it is a building related dispute.
A lawyer's letter should have cost about R3000, but a summons will cost about R4000 - R6000, so he's telling you the right story. I think that you should proceed with the summons with your lawyer. But at the same time, get your building plans done and submitted so that you can move forwards with the construction with somebody else!
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Answer to the Question
I honestly don't know why the bank thinks that this is transactional fraud.
There might very well have been a material misrepresentation made by him, which induced you to enter into the building agreement, and that misrepresentation was false, and because of the false misrepresentation you are entitled to cancel the building agreement - but that still means that you need to get your money back from him!
You don't want to give the builder the chance of filing a counter claim against you for damages for defamation. So, do not spread this around social media or anything. You can't defame him through a lawyer's letter.
If your EFT'd him the money, under a contract of building, and then you cancel the contract, WHY must the banks refund the money to you? It is not their money. It is now his money. You simply have a claim against him for the return of the money.
Only if you paid the money to him in error, and he agreed that it was a mistake, and he consents to the bank returning the money, will the bank actually reverse the payment. Otherwise they won't get involved!
Yes, a summons will work if you have a good claim - but you'll need to run the trial and lead evidence before a Magistrate and "prosecute" your claim, which means you'll need to prove the claim to the Court and then they will give you a judgment!